What’s at stake when it comes to the government’s threat to break the law

The resignation of the government's senior law advisor over the Tories' handling of the Withdrawal Agreement is extraordinary.

Reports that Jonathan Jones, the head of the government’s legal service, has quit his job is big news.

The resignation of someone few outside government will have heard of might not normally merit this kind of attention. But at issue is the question of whether, in pursuit of realising Brexit, the government is willing to break international law it signed up to only in January this year.

Jones is the permanent secretary in charge of the department that provides the government legal advice. He is a lawyer, member of the bar and has been in the job longer than all of his fellow permanent secretaries. If he has quit in protest – and the government is saying he won’t be leaving until his contract runs out next April – then it suggests he feels a line has been crossed that is inexcusable.

At issue is the government’s own EU Withdrawal Agreement, agreed with the EU last year and signed into law. Ministers now want to revisit the provisions they signed then and to use new legislation to change how they approach the tricky question of how Northern Ireland is affected by Brexit.

The problem is, while the UK government can change domestic law through new legislation, changing an international treaty requires both sides to agree. The UK government can produce new legislation, but if it acts contrary to the treaty it has already agreed, it breaches international law.

When he spoke to the Institute for Government earlier this year, Jones was very clear that this was a line he felt government cannot cross: “It derives from obligations the government has entered into through treaty. The government is subject to the rule of law and will comply with those obligations.”

After the news broke of Jones’ departure, Brandon Lewis, the Secretary of State for Northern Ireland, admitted in Parliament that the government was indeed thinking about how to breach the law, arguing that it was only in a ‘very specific and limited way’.

Jones’s resignation matters because it is very rare for an official to resign over the legality of what the government is doing. Elizabeth Wilmstead did so over the legality of the Iraq War in 2003.  But the fall out from this issue is much wider than just Jones’ departure, or any others who might follow his lead.

Part of the reaction to these events is about the principles of good government. Because the codes which guide government behaviour are all clear. Officials serve on the basis that ministers cannot ask them to break the law. Ministerial accountability is based on the principle of adherence to the law. And the government’s foreign policy is based on the concept of a ‘rules-based’ international order. These aren’t just principles to pick and choose, they underpin the entire system.

But at issue is also the strategy the government is adopting.  One is the effect this has on the negotiations currently underway with the EU. As many commentators have pointed out, if the UK is willing to breach international obligations like this, what trust can they have in new deals put in place?

The government will be hoping their approach is good politics and not worry about the rest. They may be proved right; they have in the past. But breaking the law, or even suggesting that you would be willing to do so, is an extraordinary negotiating tactic for any government to take. Ultimately, actions speak louder than words or values – and it is much harder to argue for these values of your actions don’t match.

Dr Catherine Haddon Catherine is a Senior Fellow at the Institute for Government and leads their work on changes of government, ministers and the workings of the constitution.

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